Decision 1737E – Colton Joint Unified School District

In determining whether a party has violated EERA section 3543.5(c), PERB utilizes either the “per se” or “totality of the conduct” test, depending on the specific conduct involved and the effect of such conduct on the negotiating process. (Stockton Unified School District (1980) PERB Decision No. 143.) Unilateral changes are considered “per se” violations if certain criteria are met. Those criteria are: (1) the employer implemented a change in policy concerning a matter within the scope of representation, and (2) the change was implemented before the employer notified the exclusive representative and gave it an opportunity to request negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Unified High School District (1982) PERB Decision No. 196.) In order to prevail on a theory of a change in job responsibilities, the charging party must demonstrate actual changes in the employee's job duties. If the changes are reasonably comprehended within the existing job duties, an assignment of such duties, even if never performed before, is not a violation. (Rio Hondo Community College District (1982) PERB Decision No. 279.) Here, the employees in question were still employed by the District while at work at Las Banderas. While their work locations were changed two days per week, CSEA did not indicate that their job duties had changed. Moreover, the transfer language of the current agreement gave the District discretion to transfer employees so long as the transfer is not for disciplinary reasons. CSEA did not assert that the transfer was for disciplinary reasons; thus, the language of the agreement appeared to support the District’s position that there had been no change. (adopting warning letter at p. 2.)

While health and safety concerns may be possible subjects for effects bargaining, CSEA never indicated that it requested to negotiate the changes in working conditions with the District or that the District refused to respond to such a request. Absent a request to meet and negotiate regarding effects of changes on matters within scope, it should not be assumed that charging party made such a request simply by acknowledging the changes. (adopting warning letter at p. 2.)